Aboriginal-only fisheries programs do not discriminate against non-native commercial fisherman, a B.C. Supreme Court has ruled.

But Justice Donald Brenner said that while the practice does not violate the Charter, the program has serious flaws.

The Department of Fisheries and Oceans originally came up with its controversial aboriginal-only pilot sales program to allow three B.C. bands to catch and sell sockeye salmon for one day a year.

The program was cancelled last summer after a lower court ruled that giving First Nations exclusive commercial access to salmon on certain days amounted to discrimination against non-natives.

In handing down his ruling, Brenner said Ottawa should come up with a better way of allowing First Nations people into the lucrative B.C. salmon fishery.

Phil Eidsvik, head of the B.C. Fisheries Survival Coalition – a group of non-native commercial fishermen, said he was pleased with one aspect of the ruling.

"I was pleased in the sense that the fundamental issue that we've always said is that the program is wrong and doesn't work," he said. "And the judge got that correct."

But Eidsvik said the non-native fishermen are appealing Monday's decision and expect their case to end up being decided by the Supreme Court of Canada.

The case has been before the courts since 140 commercial fishermen were arrested after setting their nets in protest during a 24-hour aboriginal-only fishery on the Fraser River 12 years ago.

Last year, a Provincial Court judge stayed all charges against the 140. In bringing down that ruling, Judge William Kitchen called the pilot sales program "government-sponsored racism."

Monday's Supreme Court ruling clears the way for reinstatement of charges against the commercial fishermen.